Tag: Defamation Act 2009

Is the Press Council system working?

Press Council and Ombudsman logoWith the recent publication by the Press Council and the Office of the Press Ombudsman of their Annual Report 2010 (Report (pdf) | Press Release), it is an opportune time to consider whether the system of press self-regulation by those two bodies is working. I think that, overall, the answer must be yes. Within the remit afforded to the Ombudsman and Press Council, they are working very well indeed. The Ombudsman and Council are energetic in spreading the word about the speedy form of redress which they operate; the growing numbers of member-periodicals show that the industry has embraced the system; and the numbers of complaints show that an increasingly-aware public are taking advantage of it. Apart from the figures, 2010 saw two very important developments: the recogition of the Ombudsman and Council pursuant to the Defamation Act, 2009 (also here); and the extension of their remit to purely online publications.

As the Council’s new Chairman, Dáithí O’Ceallaigh, notes in his Introduction to the Report, the year covered by the Report began with the coming into force of the Defamation Act, 2009, section 44 and Schedule 2 of which allowed for the formal recognition of the Press Council, which duly followed in April:

This has been no mere formality, but a significant and public recognition of the degree to which these new structures, since their institution in 2007, have met the exacting requirements laid down for recognition in the Act, and have contributed to the climate of enhanced accountability and public service within which our press industry operates.

It is the final step in a long, but stately and carefully choegraphed, dance, which began with the publication of the Report of the Legal Advisory Group on Defamation in 2003, and proceeded via the establishment by the press of the Ombudsman and Council, through the publication of the Defamation Bill, 2006 and its enactment in 2009, to this recognition. Perhaps emboldened by it, the Ombudsman and Council are becoming more visible and more muscular.
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Prior restraint and permanent injunctions in defamation cases

Irish Daily Star on Sunday MastheadIn Watters v Independent Star [2010] IECC 1 (03 November 2010), the first reported judgment on the Defamation Act, 2009 (also here), Matthews J granted the plaintiff a declaratory order pursuant to section 28 of the Act (also here) that an article published by the defendant was defamatory, and he made a further order pursuant to section 33 of the Act (also here) prohibiting the newspaper from re-publishing the defamation.

In an earlier post (also here), I have already looked at some issues arising from this decision. Another critical aspect of Matthew J’s judgment was that, although the plaintiff was a convicted criminal, he nevertheless possessed a residual reputation which was damaged by the newspaper’s allegations. Of course, evidence of a plaintiff’s general bad reputation is admissible in evidence in mitigation of damages (see section 31(4)(g) and section 31(6)(a) of the Act (also here); see also Hill v Cork Examiner Publications [2001] 4 IR 219, [2001] IESC 95 (14 November 2001) and the recent decision of Tugendhat J in Hunt v Evening Standard [2011] EWHC 272 (QB) (18 February 2011)). However, this is a long way from saying that such a general bad reputation renders a plaintiff libel-proof. Moreover, the plaintiff in Watters did not seek damages, but rather sought and obtained a declaratory order and an injunction.

Section 33 of the 2009 Act allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made, and it was on foot of that section that Matthews J granted a permanent injunction restraining re-publication of the defamation. In my earlier post, I considered its applicability in the context of interim and interlocutory applications; and I argued that, in much the same way as the previous common law had been, section 33 had to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care.

In principle, such considerations derived from the Constitution and the Convention should also be in play when – as in Watters – an application is made under section 33 for a permanent injunction as a remedy for defamation. In the US, it has been argued that a permanent injunction imposed after trial nevertheless amounts to a prior restraint upon any subsequent speech. However, the courts have held that injunctions against certain statements based on a finding on the merits that those particular statements are defamatory effectively do not amount to prior restraints and are therefore not presumptively unconstitutional (see Balboa Island Village Inn v Lemen 156 P 3d 339 (Supreme Court of California, 2007); St James Healthcare v Cole 2008 MT 453 (Supreme Court of Montana, 2008); Hill v Petrotech Resources Corp (Supreme Court of Kentucky, 21 October 2010) (blogged here on the Volokh Conspiracy)). These cases demonstrate the confusing doctrinal consequences of the US rule against prior restraints. A final order prohibiting future publication is indeed a prior restraint upon that future speech; it would be better if the US cases accepted that rather than denying it; but they would then have to go on and hold that the full trial establishing the defamatory nature of the publication overcomes the presumption against prior restraint.

By contrast, the approach to prior restraints in Ireland, influenced by the Convention, is much more nuanced, and it does not run into the same doctrinal problems justifying a section 33 permanent injunction as a remedy after trial in defamation cases. Even if a permanent injunction does indeed constitute a prior restraint upon future speech, and thus a restriction upon the right to freedom of expression protected by the Constitution and the Convention, the question would not be whether the constitutional presumption against prior restraint has been overcome, but whether, after a close and penetrating examination of the facts, the permanent injunction is a necessary and proportionate restriction upon that right. In the circumstances of Watters v Independent Star, this test would almost certainly have been satisfied, but it may nevertheless be worth a future defendant’s while taking the point. However, given the recent demise of the Star on Sunday, it won’t be that defendant.

Prior restraint and temporary injunctions in defamation cases

Irish Daily Star on Sunday MastheadSome orders have been made on foot of the Defamation Act, 2009 (also here) – see, for example, Lowry v Smyth (background here and here; coverage of the order here), Mellon v Associated Newspapers (coverage here), and Meegan v Associated Newspapers (coverage here) – but Watters v Independent Star [2010] IECC 1 (03 November 2010) remains the only reported judgment on provisions of the Act. In that case, the newspaper had published an article headlined Larry’s Secret Shower Buddy, purporting to expose a a “seedy”, “weird”, “bizarre” and “secretive” homosexual relationship in prison between the plaintiff Barry Watters and Larry Murphy, a notorious criminal who had been convicted of rape and attempted murder. Matthews J held that the plaintiff had a residual reputation which was damaged by the newspaper’s allegations. He therefore granted the plaintiff a declaratory order pursuant to section 28 of the 2009 Act (also here) that the article was defamatory, and he made a further order pursuant to section 33 of the 2009 Act (also here) prohibiting the newspaper from re-publishing the defamation. Nevertheless, the newspaper repeated the defamation: in an article alongside a photograph of Watters the newspaper had stated:

We may have to apologise to this revolting pervert but will we mean it? Hell no.

As a consquence, the newspaper was fined 40,000 euros for contempt of court (can anyone tell me whether this fine was paid before the Irish Daily Star on Sunday is to ceased publication?). Moreover, the judge ordered that a fair summary of the earlier judgment in which he found that the applicant had been defamed be published by the newspaper with equal prominence to the layout of the original defamatory article. The facts are sensationalist, but they raise an important issue of legal principle relating to section 33 of the 2009 Act, which allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made.

The issue of injunctions in defamation cases is a fraught and controversial one. This is particularly so in the context of interim and interlocutory injunctions. However, as recent US cases have demonstrated, difficult issues can also arise in the context of permanent injunctions to restrain the republication of defamatory comments of the kind sought, awarded and breached in Watters. In this post, I want to look at interim and interlocutory injunctions; and I will return to the question of permanent injunctions in a future post. (more…)

Judgment reserved in Lowry v Smyth

Michael Lowry TD, via KildareStreet.comIn Watters v Independent Star [2010] IECC 1 (3 November 2010) Matthews J in the Circuit Court handed down the first reserved decision under the Defamation Act, 2009 (also here). We will soon have the second. The politician Michael Lowry TD (pictured left) has taken a defamation action against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. I’ve already blogged about an earlier procedural skirmish in the case. The full action was heard today. According to the RTÉ news website (with links added by me to the relevant sections of the 2009 Act):

Mr Lowry says that Mr Smyth’s assertions portrayed him as corrupt, dishonest and untrustworthy and both unfit and unsuitable to be a minister or a TD. He said that other people had taken this same meaning from Mr Smyth’s comments. Mr Lowry says the comments were false and as such were deeply offensive and defamatory.

Mr Lowry is seeking that the court make a number of orders including that Mr Smyth apologise, publish a correction and refrain from making such public comments in the future. However, Mr Smyth is arguing that the comments made by him were true and represented his honest opinion. He said that they were fair and reasonable comments on a matter of public interest.

Judgment has been reserved, and is expected early next term.

Update (18 December 2010): From the Irish Times: Journalist says he called TD a tax cheat not a thief

Reshaping the Law for the Digital Economy – II – the liability of intermediaries

Google image, via GoogleAs I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.

She examined the main rights of each of the three main involved: rights holders, subscribers, and intermediaries. (more…)

Sleepwalking into an obscene damages award

Kenmare ResourcesObscene. Once I had caught my breath, and collected my composure, this was my immediate reaction to learning that a high court jury had awarded 10 million euro in libel damages, made up of €9m in compensatory damages and €1m in aggravated damages. According to RTÉ:

A Co Louth businessman who took a libel action against his former employers after an incident in which he sleep walked naked has been awarded €10m in damages.

The jury agreed that a press release sent out by mining company Kenmare Resources in July 2007 insinuated that Donal Kinsella had made inappropriate sexual advances to company secretary Deirdre Corcoran on a business trip in Mozambique in May that year.

The award is the highest award of damages for defamation in the history of the State. … Lawyers for Kenmare Resources were granted a stay on the award pending an appeal to the Supreme Court. … Kenmare Resources issued a statement saying it was ‘shocked’ at the verdict and it will ‘immediately and vigorously appeal the decision’.

The Irish Times added: “Outside court, Mr Kinsella (67) said he was ‘exhilarated and vindicated’ by the jury’s verdict”. I do not in any way begrudge him the vindication of his reputation, but does this really require 10 million euro? Indeed, the Journal.ie reported that the judge (Mr Justice Éamon de Valera) “appeared surprised at the scale of the damages being awarded”.

Appeals to the Supreme Court are pending in three other high profile cases of involving very high levels of damages. (more…)

The first reserved judgment on the Defamation Act, 2009

Four Courts dome, via the Courts.ie websiteSection 28(1) of the Defamation Act, 2009 (also here) provides:

A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.

Today, in an important decision, (that has been overshadowed by the coverage given to Doherty v Government of Ireland [2010] IEHC 369 (03 November 2010)), the first reserved judgment on the 2009 Act has been handed down on an application pursuant to this section (and another action seeking a declaration is pending):

Porn offender still capable of having character defamed, judge rules

A convicted porn user who had openly admitted his guilt and had sought psychiatric help is still capable of having his “residual” character defamed, a judge decided today.

Judge Joseph Matthews said that 34-year-old Barry Watters, of Hazelwood Avenue, Dundalk, Co Louth, had suffered a substantial loss of reputation through his guilt, conviction and imprisonment on pornographic charges. But he could not reasonably be said to be in the same category as a convicted prisoner who refused to accept his guilt, remained in denial and do absolutely nothing with no remorse, contrition, acceptance of wrong doing or show any intention to rehabilitate or not re-offend.

Judge Mathews told barrister Hugh Mohan, S.C., who appeared with James Mc Cullough, for Watters, that their client retained a residual reputation capable of being damaged by allegations suggested in an article in The Star on Sunday in September last. Watters had asked the Circuit Civil Court judge to direct the newspaper to publish an apology for stating he had formed “a seedy and weird relationship” in prison with Larry Murphy and referring to Watters as “a twisted pervert.” …

Judge Mathews said Mr Watters was entitled to a declaratory order that the article was defamatory and the court directed publication of a correction of the defamatory statement. The Act provided for the parties to agree the content of the correction and apology and if they were unable to do so the court could direct publication of the court’s judgment. He granted Mr Watters, who had not sought damages against The Star on Sunday, an order prohibiting the newspaper from further publishing the false and defamatory statements it had made.

The case was adjourned for a week to facilitate consideration of an appeal.

Read more here and here. Update: Irish Times.

This kind of action is exactly what the reforms in the Act were designed to achieve, a quick resolution without an application for damages. I look foward to reading the full text of the decision, and if anyone can supply it to me, I would be very grateful.

Mechancial turks, safe harbours, and immunities – liability for defamatory comments on websites

Contemproary mage of the Mechanical Turk via wikipediaEric Goldman has recently blogged about a US case in which a local tv broadcaster was not held liable in defamation for a comment posted on its website by a viewer. More recently, Rebecca Tushnet discussed a case in which the review website Yelp was held not liable in defamation for hosting a review to which its subject objected (see also CYB3RCRIM3 | Eric Goldman | First Amendment Coalition | Internet Defamation Law Blog | Techdirt ). (Indeed, review authors will usually be able to rely on the defence of fair comment – or honest opinion – anyway). More recently still, Lilian Edwards has blogged about her presentation on internet intermediaries and legal protection. These posts got me thinking about how such disputes might play out as a matter of Irish law.

[After the jump, I discuss the basic position at common law and under the Defamation Act, 2009 (also here), and then I compare and contrast US ‘safe harbor’ defences with EU immunities.] (more…)